Hrytenko, O., Prymachenko, V., Shablystyi, V., Karikh, I. / Volume 10 - Issue 42: 264-273 / June, 2021 264

DOI: https://doi.org/10.34069/AI/2021.42.06.25 How to Cite: Hrytenko, O., Prymachenko, V., Shablystyi, V., & Karikh, I. (2021). Criminal liability for cruelty to animals under the legislation of Ukraine: features of theory and practice. Amazonia Investiga, 10(42), 264-273. https://doi.org/10.34069/AI/2021.42.06.25

Criminal liability for cruelty to animals under the legislation of Ukraine: features of theory and practice

Кримінальна відповідальність за жорстоке поводження з тваринами за законодавством України: особливості теорії та практики

Received: June 3, 2021 Accepted: July 10, 2021

Written by: Oksana Hrytenko112 https://orcid.org/0000-0003-1376-6956 Web of Science researcher code: AAQ-5672-2021 Vitaliy Prymachenko113 https://orcid.org/0000-0002-9907-0820 Web of Science researcher code: AAQ-5686-2021 Volodymyr Shablystyi114 https://orcid.org/0000-0003-0210-1772 Web of Science researcher code: AAI-6473-2020 Ihor Karikh115 https://orcid.org/0000-0001-8209-2743 Web of Science researcher code: AAR-2469-2021

Abstract Анотація

The study aimed to determine the characteristics Метою дослідження стало визначення of criminal liability for cruelty to animals. The особливостей кримінальної відповідальності за object of the study is social relations arising in жорстоке поводження з тваринами. Об’єктом the field of morality protection. We used the дослідження є суспільні відносини, що виникають following general scientific methods: dialectical, у сфері захисту моральності. Предметом historical, descriptive, methods of scientific дослідження є кримінальна відповідальність за analysis and generalization. In addition to жорстоке поводження з тваринами. Нами було general scientific methods, we also used special використано наступні загальнонаукові методи: methods: comparative legal and statistical. діалектичний, історичний, описовий, метод Having performed a retrospective analysis of наукового аналізу та узагальнення. Крім criminal liability for cruelty to animals, we загальнонаукових методів, ми використовували identified four historical stages in the formation також спеціальні методи: порівняльно-правовий і статистичний. Здійснивши ретроспективний and development of criminal legal standards for аналіз кримінальної відповідальності за жорстоке cruelty to animals. Having investigated the поводження з тваринами, ми виділили чотири reasons for the social conditioning of історичні етапи формування та розвитку criminalization for cruelty to animals, the кримінально-правових стандартів щодо authors identified a range of problems in the жорстокого ставлення до тварин. Дослідивши field of humane treatment of animals that require причини соціальної обумовленості криміналізації immediate solutions: the use of animals in за жорстоке поводження з тваринами, було scientific experiments, the manufacture of виявлено низку проблем у сфері гуманного clothing from leather and animal fur, the ставлення до тварин, що потребують негайного

112 Doctor of Law, Associate Professor, Professor of the Department of Criminal Law and Criminology, Odesa State University of Internal Affairs, Ukraine. 113 Candidate of Law Sciences, Associate Professor, Head of the Department of Criminal Law and Criminology, Dnipropetrovsk State University of Internal Affairs, Ukraine. 114 Doctor of Law Sciences, Professor, Head of the Department of Criminal Law Disciplines, Dnipropetrovsk State University of Internal Affairs, Ukraine. 115 PhD in basics of national security (political science), Senior Lecturer, Department of Criminal Legal Disciplines and Procedure, Sumy State University, Ukraine.

www.amazoniainvestiga.info ISSN 2322 - 6307

Volume 10 - Issue 42 / June 2021 265

activities of dog hunters and the use of animals вирішення: використання тварин в наукових in circuses. Factors affecting the cruelty of a дослідах, виготовлення одягу з шкіри та хутра person have been also identified. The звірів, діяльність догхантерів та використання delimitation of corpus delicti from an тварин в цирках. Також визначено чинники, що administrative offense is carried out according to впливають на жорстокість особи. Відмежування several main criteria: the degree of public danger складу злочину від адміністративного and consequences. International experience in правопорушення здійснюється за декількома the context of criminal liability for cruelty to основними критеріями: ступінь суспільної небезпеки та наслідки. Міжнародний досвід animals is diverse. особливостей кримінальної відповідальності за

жорстоке поводження з тваринами є Keywords: cruelty to animals, cruelty, criminal різноманітним. Зокрема, українське liability, international experience, delineation of законодавство істотно відрізняється покаранням offenses. та віком суб’єкта злочину. Суворість покарання в майбутньому забезпечить не лише меншу кількість випадків жорстокого поводження з тваринами, а й дозволить максимально наблизити вітчизняне кримінальне законодавство у сфері захисту тварин до європейського.

Ключові слова: жорстоке поводження з тваринами, жорстокість, кримінальна відповідальність, міжнародний досвід, відмежування правопорушень.

Introduction Theoretical framework

Hunting is a widespread practice among human The study’s theoretical framework is the communities (Barbosa de Lima, de Oliveira scientific works of domestic and foreign Rebouças & Batista Santos, 2021). At the same scientists who reveal the essence of cruelty to time, humane treatment of animals is an animals. In particular, according to Sinclair L, obligation in most countries. This testifies both Lockwood R., cruelty to animals is a to the high moral values of society and to the widespread phenomenon entailing serious sense of responsibility towards the environment. consequences both for animal welfare and for Unfortunately, the idea of protecting animals, individual and public welfare (Sinclair & which found its expression both in public Lockwood, 2005). speeches of citizens and in the clear steps of the domestic legislator, has not yet found its R. Lockwood and P. Arkow note that acts of expression. Almost every day, social media violence against animals in many cases are posts containing signs of cruelty to animals are modeled on the same dynamics of power and posted. Children with an immature psyche, control, which often denotes a trajectory of taking an example, perceive violence against intimate partner violence, sexual violence, child fauna as a common thing, which in the future abuse, and other violent antisocial behavior often leads to serious problems. The focus on behaviors (Lockwood and Arkow, 2016). cruelty to animals is not accidental. Since 2017, the rate of registered crimes against animals has R. Osokin and A. Chibizov reveal the essence of almost doubled. In addition, the reasons for the cruelty to animals in more detail. They define prevalence of this phenomenon include the lack them as beatings, torture, destruction of habitats, of legislative regulation of this crime violation of zootechnical, zoohygienic, (Bayrachnaya, Nadtochiy, Isaev & Surenovna, veterinary and sanitary rules, other actions 2018). Although cruelty to animals is common (inaction) that entail injury, exhaustion from throughout the world, its true extent is largely prolonged starvation or death of animals, the unknown. (Glanville, Ford & Coleman, 2019). cruel killing of animals, and other actions that Therefore, research on criminal liability for contradict the rules established by law and the cruelty to animals is important and relevant. The norms of humane treatment of animals accepted study aimed to determine the characteristics of in society (Osokin & Chibizov, 2011). criminal liability for cruelty to animals. The object of the study is social relations arising in It is feasible to focus on the study by R. the field of morality protection. The subject of Veresha, who concludes that cruelty to animals the study is the criminal liability for cruelty to creates an even more dangerous phenomenon – animals. cruelty to humans. This approach fundamentally

http:// www.amazoniainvestiga.info ISSN 2322- 6307

266 changes the idea of the public danger of such an ancient philosophers also influenced the act, thus necessitating the application and development of relevant criminal science. One development of the relevant norms of the of the most striking examples is the hero of criminal law (Veresha, 2014b). ancient myths – Triptolemus, guided by three commandments of a dignified life: treating Methodology parents with respect, giving gifts to the gods, preserving and protecting animals (Clark, 2000). We used the following general scientific The famous Greek philosopher Pythagoras methods: dialectical (to determine the subject of believed that the souls of people and animals the crime under investigation); historical have a common origin from the spirit that method (to study the process of formation of permeates the whole world, and his students liability for cruelty to animals), descriptive called on for observing the principles of method (to reveal some concepts, conduct a humanity and moderation, self-restraint and general description of the elements of the believed that a good attitude towards animals is crime); method of scientific analysis and the basis of human morality (Ziegler, 1995). generalization (to distinguish between crime and misconduct). In addition to general scientific Thus, the first stage in the specification of methods, we used special methods: the liability for cruelty to animals can be comparative legal method (to compare criminal distinguished, which lasted from about the end liability for cruelty to animals in different of the third century BC to the third century AD. states); statistical method (to analyze statistical The peculiarity of this period is that the data related to this crime). corresponding sources do not determine the punishment for a cruel attitude towards animals, Results and discussion but such actions entail moral condemnation from society. However, the use of animals as a Retrospective analysis of liability for animal labor force and their use for food remained the cruelty main means of subsistence.

The concept of cruelty to animals has been The next stage in the formation of criminal law known long before Martin’s Act or creating the standards for the treatment of animals is a wide first animal welfare organizations. To period of time from the fourth to the systematize the periods that humanity has gone seventeenth century AD. It is known from through in establishing legal standards for the history that wars took place all over the world at problem of animal welfare under criminal law, that time. By the example of Ukraine, we note we propose to highlight the relevant historical that the consequences of Greek colonization, the stages. large settlement of the Slavs, the unification of the northern and southern lands, the introduction The authors consider the early references to of Christianity, the division of the thrones of attitudes towards animals, which served as a KievanRus, the unification of the Galician and further basis for issues of modern liability for Mongolian principalities, the Mongol invasion, cruelty to animals. One of them is the Bible, the division of Ukrainian lands between various which states: “If you see the donkey of one who empires, joining the Grand Duchy of Lithuania hates you lying under its burden, and you would – these events were aimed at solving political, refrain from helping it, you shall surely help economic or social problems. Therefore, careful him with it.” The Christian religion, the canons treatment of animals was far from the forefront collected in the Holy Book, encourages people of established problems. Although KievanRus to care for and help animals, regardless of had animals that required special attention – whether they own them. Another major work is birds that were considered sacred. Punishment the Laws of Manu. These laws contain the main was even provided for the destruction of nests, provisions that shaped the further development but on the part of a Christian or pagan god: for of vegetarianism and non-violence: one of them destroying a stork’s nest, a house can burn is “the one who kills an animal, the buyer and down, for destroying a nest of swallows, seller of meat, the one who prepares food from pockmarks will the face ugly (Skurativsky, it, serves it to the table, eats – they are all 1995). Consequently, due to historical events, murderers” (Elmanovich, 2002). The provision this period is characterized by a decline in prohibits killing and eating meat and condemns attention to the issue of cruelty to animals. such actions, proclaiming such a person as a murderer, evokes condemnation on the part of The real beginning of the struggle for protecting society. It is worth noting that the ideas of animals can be considered the moment of the

www.amazoniainvestiga.info ISSN 2322 - 6307

Volume 10 - Issue 42 / June 2021 267

creation of relevant regulatory legal acts and the relevant legal framework. Thus, the third special organizations. Therefore, the next stage stage became a kind of engine that launched a of forming criminal legal relations concerning mechanism for resolving the issue of cruelty to the treatment of animals begins in the animals at the national level. seventeenth century. In particular, the main events of this period are the adoption of the first Since the middle of the twentieth century, the animal welfare statute in North America in fourth stage of forming the modern criminal law 1641. This code included 92 paragraphs, the last attitude to cruelty to animals begins. After the of which proclaimed that “no man should Second World War, the international practice tyranny or cruelty against any creature community issues acts that introduce basic of God, usually used for the benefit of man” provisions on the attitude to and existence of (Francione, 1996). One of the most significant animals. One of them is the European steps in animal welfare was the legislative Convention for the Protection of consolidation of the 1822 Act, the so-called Vertebrate Animals Used for Experimental Martin’s Act. The provisions indicated a wide and other Scientific Purposes dated March 18, list of animals that were subject to this Act and 1986. The main purpose of this act is to protect the corresponding actions for which sanctions animals that serve as experimental subjects in were imposed: “beatings, poor care or cruel scientific research “if such a procedure can treatment of any horse, mare, gelding, silt, cause pain, suffering, anxiety, cause long-term donkey, bull, cow, heifer, sheep or other cattle” harm” (European Convention No. 123, 1986). were punished with a monetary penalty (from Another defining document at the international 10 shillings to 5 pounds sterling) or level is the European Convention for the imprisonment for a period of three months (7). Protection of Domestic Animals as of In 1824, the first animal welfare organization, November 13, 1987. In particular, the basic the Society for the Prevention of Cruelty to principles of this convention proclaimthat “no Animals, was created. After that, the one should cause unnecessary pain, suffering or corresponding trend spread in many European oppression for a pet; no one should leave a pet” countries. (European Convention, 2014). An important step to solve this problem was creating the In 1861, the First Russian Society for the World Society for the Protection of Animals. Protection of Animals was created. In 1866, the Society pays attention to important issues: Rules for the Treatment of Animals were keeping dolphins in captivity, slaughtering published. The main provisions of which were: whales, etc. it is forbidden to use sick, lame and wounded animals in work; it is not allowed to hit animals At this time in the Soviet Union, the Criminal with a hard or sharp object, and to hit on the Code was changed (Law No. 2001-05, 1960). stomach or head in general; it is forbidden to Still, only the 1988 amendment established the give the animal a load that is too heavy for it; it liability for cruelty to animals: “the cruel is not allowed to put on a lasso on a horse when treatment of animals, resulting in their death or the horse walks in yarn and slightly pulls the injury, as well as torture of animals, committed cart, etc. A significant contribution of such by a person who was subjected to an societies is also the fact that in 1871 these Rules administrative penalty for the same actions were supplemented with some articles that had during the year, shall be punished with an imperative nature of prohibitions and correctional labor for a term of up to six months established liability: “Art. 43-A. The or a fine of up to forty times the minimum perpetrators are subject to a monetary recovery amount wages” (Law No. 2001-05, 1960). not exceeding 10 rubles for inflicting useless torment on farm animals. Article 153 imposes Today in Ukraine, there are legal acts arrest for 1 month or a monetary penalty not concerning the maintenance, care, and exceeding 100 rubles for the slaughter or protection of animals: the Law of Ukraine On maiming of other people’s animals.” the Protection of Animals from Cruelty dated February 21, 2006; the Law of Ukraine On the Consequently, this stage lasted from the Animal World dated February 13, 2001; the beginning of the 16th century to the middle of Law of Ukraine On the Protection of the Natural the 20th century and is characterized by the Environment of June 25, 1991; the Law of active attraction of attention to the issue of Ukraine On Veterinary Medicine of June 25, violence against animals, the creation of the first 1992, (Law No. 1264-XII, 1991) etc. Moreover, law aimed at protecting animals; the activities of the Code of Administrative Offenses of Ukraine protective organizations and their influence on and the Criminal Code of Ukraine contain

http:// www.amazoniainvestiga.info ISSN 2322- 6307

268 articles establishing liability for illegal acts killing animals (sometimes people) to thank the against animals. gods. Therefore, the first reason for the protection of animals is the religious and Thus, we have identified the fourth stage in mythical ideas of humanity. forming criminal law standards for the treatment of animals. Its peculiarity is the consolidation of As noted above, at the second stage of the relevant acts of animal protection at the development (the fourth to sixteenth century international level, creating global animal AD) of the criminal law attitude towards cruelty welfare organizations, and the active attraction to animals, the interest in this problem declined. of attention to the issues of cruelty to animals Although in Russkaya Pravda, for the first time and the prohibition of the use of animals in the in Ukraine, there was an attempt to introduce circus, and experiments on them. This period liability for violence against animals: “for lasts from the middle of the twentieth century to deliberately slaughtering someone else’s horse the present day. or other cattle, the attacker pays 12 hryvnias to the treasury, and the owner – 1 hryvnia. For cut Thus, analyzing the above, we have identified trees with pedigree beehives, the guilty person four main stages in forming criminal law is obliged to contribute 3 hryvnias to the standards concerning cruelty to animals. Each treasury. Although the need for legislative stage is characterized by the definition of time consolidation was first based on the protection intervals and some features corresponding to the of a person’s property. In addition, in the Law social development of that period. Code of Casimir of 1468, liability for cruelty to animals was not introduced because animals Social conditionality of criminalization of were recognized as movable things. One of the cruelty to animals crimes against property was “the keeping of strayed or stolen cattle for more than three The need to introduce criminal liability for days” (Dovnar, 1995). Such a crime was cruelty to animals appeared and developed for a considered serious, and an appropriate sanction long period of time. We propose to investigate was established. If the amount of theft exceeded them per the historical stages that we discussed 30 Lithuanian money, the death penalty was above to find out all the conditions and reasons applied to the perpetrator. Thus, at the second for the criminalization of the crime. stage, the main prerequisite for animal protection was protecting property. At the first stage, which lasted from the end of the third century BC and to the third century At the third stage, the first legislative AD, there was a need to condemn such behavior consolidation of the rules for treating animals rather than prosecute it. Neither the Bible nor took place. As already noted, the relevant the Laws of Manu determine the appropriate regulatory legal acts prohibited the mutilation of sanction. Considering that animals were the animals. In our opinion, this step was due to a main source of food and labor in this historical simple causal relationship because animals were period, it is logical that the reason for their still used as a means of farming and movement protection was far from a sense of humanism. in any country (especially in rural areas) in the Religious and mythological beliefs were a basic period from the sixteenth to the middle of the need to protect oneself from the vengeance of twentieth century. Therefore, it is logical that the gods. Fear of punishment forced people to the injury of an animal can lead to partial and refrain from performing cruel actions against sometimes complete loss of performance of the animals. For example, Jainism, a religiously animal. Another feature of this period is the philosophical doctrine widespread in India and creation of the first animal protection Sri Lanka, professes the rule of non-violence. organizations. It was this step that was caused Any violent actions are prohibited. The highest not by consumer needs but by the manifestation religious duty is based on the fact that you of humanity. By the beginning of the nineteenth cannot kill any living creature, and this should century, the issue of cruelty to animals began to be expressed not only in actions but also in be publicly discussed. Public figures of that thoughts. During this period, in Europe, the time were increasingly expressing opinions on attitude to animals was somewhat different. For the relevant topic. For example, Leonardo da example, in the myth of Ancient Greece “The Vinci, who was known for his love of animals Twelve Labors of Hercules”, the hero is and was a vegetarian, noted that morality glorified for brave deeds, the overwhelming towards animals should change to the majority of which involve killing animals. In inadmissibility of cruelty to them. addition, a common practice was a sacrifice – Consequently, attention to the issue of cruelty to

www.amazoniainvestiga.info ISSN 2322 - 6307

Volume 10 - Issue 42 / June 2021 269

animals has become another reason for her psyche. An immature person tends to criminalizing the relevant crime. imperfectly distinguish between good and evil. Especially when one of the parents Within the last period of development, which systematically uses violence against the other at continues today, issues related to animals are home. Moreover, the influence of television, actively discussed in society. One of the first computer games, social networks, and other problems facing humankind today concerning things lay the appropriate template for solving the attitude to animals is the problem of their certain situations using aggression and force. use in research. Testing of cosmetics and medical products on animals is negatively The main reason for criminalizing the relevant evaluated by society. In particular, calls for the crime was that cruelty to animals is a abandonment of such cosmetics are increasingly consequence of committing crimes that are common on social networks. As for Ukraine, the more serious. This is confirmed by studies relevant European Convention On the conducted at the Serbsky Center of Psychiatry – Protection of Vertebrate Animals Used for about 85% of criminals who have committed Research and Other Scientific Purposes dated grave and especially grave crimes have March 18, 1986 was ratified only on January 9, previously cruelly treated animals (Lobov, 2014, but this act has not been implemented yet. 2000). A well-known case is the example of The next reason for the protection of animals is AnatoliiOnopriienko – a repeat offender-killer the manufacture of leather clothing and fur who was inclined to abuse animals in childhood. coats. The conditions in which animals are kept Thus, the social conditionality of and the methods of killing cause a lot of public criminalization consists in several aspects. indignation. In particular, the United States Condemnation of cruelty to animals according became the first country to ban the sale of fur to religious canons, recognition of ownership clothing. over them, inhuman and anti-moral behavior influences the formation of propensities for In post-Soviet countries, including Russia, cruelty and aggression. In addition, in Ukraine, Ukraine, and Belarus, the activity of dog hunters there are still many problems of animal has actively spread, which causes a flurry of exploitation that require immediate solutions criticism from both ordinary citizens and public and legislative consolidation. figures. Dog hunters are persons who, to protect themselves and their loved ones from the attacks Delimitation of the corpus delicti “Cruelty to of stray dogs, kill them by food poisoning. In animals” from an administrative offense 2010, a website Вредителям.НЕТ was created, which promoted the relevant activities. In In addition to criminal liability for cruelty to addition to these motives, supporters of the animals, there is also administrative liability. relevant policy often resorted to killing animals Special attention should be paid to the that are owned. separation of an administrative offense from a criminal offense because neither the Criminal Recently, a circus with animals has become a Code of Ukraine nor the Code of Ukraine on problem in Ukraine. Videos shown on social Administrative Offenses defines clear networks, TV channels, and journalistic boundaries. investigations indicate that the authorities should immediately ban the display of animals First, we consider the specifics of administrative in circuses. The reason for this is inappropriate liability. Thus, Art. 89 of the Code of conditions for keeping and training animals. The Administrative Offenses of Ukraine defines Ministry of Culture plans to ban the circus with such actions as cruelty to animals: “mockery of animals until 2021. In Europe, a corresponding animals, inflicting beatings or committing other ban has long been established. Germany uses a violent actions that inflicted physical pain on the modern method – the holograms of animals are animal, suffering and did not entail bodily harm, used. injury or death, including violation of the rules of keeping animals” (Law No. 8073-X, 1984). A person’s tendency to cruelty depends on Thus, a crime and an administrative offense various factors. Home environment, attitudes in have common features: punishment, public school or work, social impact. In particular, in danger, guilt, illegality. However, there are also most cases, minors are exposed to violent certain differences. First of all, these are the tendencies. It often happens that a child actual grounds for liability. The grounds for accidentally witnesses bullying of both humans administrative liability are expressed in the and animals, which leaves an imprint on his or specific composition of the offense – an

http:// www.amazoniainvestiga.info ISSN 2322- 6307

270 unlawful, guilty (intentional or reckless) action harm does not entail either administrative or or inaction that infringes on public order, criminal liability, which is unacceptable. property, rights, and freedoms of citizens, on the established management procedure and for The complexity of the distinction between an which the law provides for administrative administrative offense and a crime is also found liability. According to the Criminal Code of in the qualification of acts of cruelty to animals Ukraine, the only basis for criminal liability is under Part 2 of Art. 89 of the Code of Ukraine the presence in the actions of a person of signs on Administrative Offenses and part 1 of Art. of corpus delicti (Law No. 2341-III, 2001). 299 of the Criminal Code of Ukraine, namely the propaganda of cruelty to animals and public Turska V.A. states that the degree of public calls for the commission of acts that have signs danger and its quantitative factor (repetition, of cruelty to animals. Art. 5 of the Law of relapse) is the main criterion for distinguishing Ukraine On the Protection of Animals from between crime and administrative offense. Cruel Treatment states: “It is prohibited to Administrative offenses include actions promote cruelty to animals, to call on for cruelty characterized by a lesser degree of public to them...” (Law No. 3447-IV, 2006), but there danger and the absence of great harm to society is no clear definition of these concepts, as in any (Turska, 2014). other regulatory legal act governing the rules for the treatment of animals. In particular, Article 89 of the Code of Administrative Offenses of Ukraine also defines In our opinion, the promotion of cruelty to the consequences, which is an important animals is a way of influencing public opinion, criterion for distinguishing the composition of which is expressed in the dissemination of facts, offenses. As already noted, these actions did rumors, arguments, statements about the need to not lead to personal injury or death. Correlation use cruelty to animals for one purpose or of the disposition of Art. 89 of the Code of another, orally or in writing through Ukraine on Administrative Offenses and Art. communication with society in real or the 299 of the Criminal Code of Ukraine virtual world. Public calls for cruelty to animals immediately reveals some issues. are an active appeal to society, demanding or asking for actions that contain signs of cruelty First, the subject of the crime of cruelty to to animals, either verbally or in writing, through animals is vertebrate animals, and in an communication with society in the real or administrative offense – any animal. Such a virtual world. It is worth noting that animal discrepancy is unacceptable. After all, the cruelty advocacy is a broader concept and question of fairness arises concerning non- includes public calls for cruelty to animals. vertebrate animals. This disadvantage can be interpreted by the fact that vertebrates Confirmation of the ambiguity of the judges’ experience great physical pain and have more decisions in cases of this nature is the example advantages than all others have, which of case contradicts the Universal Declaration of Animal No. 679/917/19. Its essence is as follows: the Rights, adopted on September 23, 1977, where person posted a publication in one of the groups it is defined in Art. 1 that “all animals have on the Facebook network, expressing his civic equal rights to exist within the boundaries of position regarding stray dogs, namely, biological equilibrium” (World Declaration of distributed a recipe for the poison. The court Animal Rights, 1978). qualified such actions as an administrative offense under Part 2 of Art. 89 of the Code of Second, causing bodily harm to an animal is not Ukraine on Administrative Offenses, namely the an act that contains signs of an administrative promotion of cruelty to animals. The reasoning offense or crime. Art. 89 of the Code of states that “his comments were public, promoted Administrative Offenses of Ukraine states “did and called on publicly to commit acts that had not entail bodily harm, injury or death,” i.e., the signs of cruelty to animals” (Resolution of the actions that led to these consequences contain Netishyn City Court of Khmelnytsky Region, signs of criminal liability. However, analyzing 2019). Although, public calls for the the disposition of Art. 299 of the Criminal Code commission of actions containing signs of of Ukraine, we define that cruel treatment of cruelty to animals are already a basis for animals, which entails criminal liability, is the criminal prosecution. However, to prevent occurrence of such consequences as mutilation disagreements of prosecution for public calls for or death of the animal. Thus, causing bodily the commission of actions containing signs of cruelty to animals, we propose to classify such

www.amazoniainvestiga.info ISSN 2322 - 6307

Volume 10 - Issue 42 / June 2021 271

actions as signs of an administrative offense. statistical information on the state of crime for Such actions carry less public danger compared November 2019, it was found that of the to causing bodily harm, injury, and death of an registered criminal offenses under Art. 299 of animal. Moreover, this approach will reduce the the Criminal Code of Ukraine, only 13% of the burden on the pre-trial investigation bodies. proceedings were directed to the court, while Thus, now the differentiation of corpus delicti the other 87% are the proceedings, decisions on and an administrative offense is carried out which has not been adopted. Thus, the according to several main criteria: the degree of peculiarity and specificity of the investigation of public danger and the consequences, in crimes for cruelty to animals have a certain particular, bodily harm, injury, and death of an impact on future crime. The conviction of animal. However, in the course of the study, criminals that they will not be held accountable significant shortcomings were found in Art. 89 is reflected in the recurrence of the crime. of the Code of Ukraine on Administrative Offenses and Art. 299 of the Criminal Code of In addition to the subject of the crime, domestic Ukraine. First, the lack of unambiguity legislation also differs significantly in the concerning the subject of the crime; second, sanction. For example, the Austrian Criminal lack of liability for causing bodily harm to an Code specifies that cruelty to animals resulting animal; third, the difference in the interpretation in suffering, abandoning animals to their fate or and unambiguity of prosecution for the setting them against each other is punishable by propaganda of cruelty to animals and public up to 1 year in prison. In addition, the following calls for the commission of acts that have signs actions are also considered punishable: causing of cruelty to animals. injury or death, keeping several animals without food or water. In Israel, the criminal law International experience in criminal liability for provides for imprisonment for 3 years for cruelty to animals causing injuries, poisoning, causing bodily harm, killing an animal. In countries such as Given the urgency of Ukraine’s integration into Ireland, Canada, and most US states, only the the European Union, the topic of implementing basic penalty of imprisonment is provided for international standards in domestic legislation is cruelty to animals. On the other hand, crucial. European society pays great attention to Singapore’s criminal law defines punishment, the duty of humane treatment of animals at the imprisonment or a fine of up to $800. In Turkey, legislative level. In particular, Germany became the sanctions for this crime can also be the first country to establish a constitutional ban imprisonment for 2 years or a fine of up to on cruelty to animals. In turn, France defines $250. Interestingly, in Sweden, if a bystander two types of crimes against animals: cruelty and sees an animal in a car with closed windows, he mistreatment of animals. Another feature is the or she can break the window with impunity to obligation of each owner of the animal to provide access to air. Moreover, in Poland, register it, make the appropriate vaccinations Japan, Switzerland, Denmark, Bulgaria, South every year, and even contact a zoopsychologist Korea, there is no criminal punishment for if changes occur in the animal’s behavior cruelty to animals. (Larkin, & Shepel, 2015). In our opinion, it is also worth paying attention The definition of the subject of the crime for to the sanction of Article 299 of the Criminal cruelty to animals is very different in various Code of Ukraine. In particular, today, under the countries worldwide, namely, the age at which first part of this article, a person is punished criminal liability occurs. In particular, in the with arrest for a term of up to six months or Netherlands and Israel, the subject of a crime restraint of liberty for a term of up to three can be a person who has reached the age of 12; years. Domestic legislation is quite loyal to the in Norway and Sweden – 15 years; Spain – 18 definition of the sanction of this crime. years old, and in Turkey, in general, criminal However, in practice, there are some pretty liability for cruelty to animals begins from the gruesome cases of cruelty to animals that, in our age of 11 (Veresha, 2014a). Indeed, in our opinion, should be subject to more severe opinion, it is advisable to establish a lower age penalties. Analyzing the sentences that entered for cruelty to animals in the Criminal Code of into force in 2019, we found that under Part 1 of Ukraine – 14 years. Art. 299 of the Criminal Code of Ukraine, 70% of punishments were 1 year of restriction of The low rate of investigation of crimes for freedom, and 30% – were other punishments. cruelty to animals leads to confidence in We believe that this type of punishment often impunity. After analyzing and comparing

http:// www.amazoniainvestiga.info ISSN 2322- 6307

272 does not fulfill its main goal – correction and re- development of criminal legal standards for education. cruelty to animals. At each stage, a time frame was identified, the conditions and features in Thus, taking into account the specifics of which legal responsibility for cruelty to animals serving a sentence in the form of restriction of was formed. Conducting researchthe reasons for freedom and the degree of social danger of the social conditioning of criminalization for cruelty to animals, it can be argued that the cruelty to animals, the authors identified a range sanction of Art. 299 of the Criminal Code of of problems in the field of humane treatment of Ukraine requires improvement. In particular, it animals that require immediate solutions: the is advisable to replace the restriction of liberty use of animals in scientific experiments, the for up to three years with a sanction in the form manufacture of clothing from leather and animal of imprisonment for a period of 1 year. It is the fur, the activities of dog hunters and the use of change in punishment to a more severe one that animals in circuses. Factors affecting the cruelty will reduce the incidence of cruelty to animals of a person have been also identified. The in the future. delimitation of corpus delicti from an administrative offense is carried out according Demidova V.V. notes that one of the most to several main criteria: the degree of public progressive animal protection laws in Europe danger and consequences. International was the law adopted on May 27, 2004 in experience in the context of criminal liability for Austria. According to the relevant regulatory cruelty to animals is diverse. In particular, legal act, it is considered a crime to tie up Ukrainian legislation differs significantly in livestock with tight ropes, keep chickens in tight terms of punishment and the age of the cages, and cut off the ears and tail of dogs perpetrator. In our opinion, it is advisable to (Demidova, 2018). adjust the punishment for this crime: to replace the restriction of liberty for a period of up to Sinoverskaya T. I. notes that the US legislation three years with a punishment in the form of is among the most progressive animal protection imprisonment for a period of 1 year. Thus, the legislations. Every state in the United States has severity of punishment in the future will ensure the Animal Health Surveillance Program that a smaller number of cases of cruelty to animals regulates sterilization, trapping, licensing, and make it possible to bring the domestic animal walking, shelter activities, price per sale, criminal legislation in the field of animal and public awareness of animals. In particular, protection as close as possible to the European the United States has extremely high fines for one. cruelty to animals ($400-150,000) and imprisonment (from 90 days to 10 years). The Bibliographic references punishment assignment depends primarily on the subjective side of the crime: ignorance, Barbosa de Lima, J., de Oliveira Rebouças, P., negligence, or willfulness (Sinoverskaya, 2019). & Batista Santos, C. (2021). Hunting and Use of Thus, analyzing the above, it is advisable to Wildlife Species in the Semi-Arid Region of argue that the international experience of the Brazil. Amazonia Investiga, 9(36), 9-21. features of criminal liability is extremely https://doi.org/10.34069/AI/2020.36.12.1 diverse. In particular, the Ukrainian legislation Bayrachnaya, L., Nadtochiy, Y., Isaev, A., & differs significantly in the sanctions and the Surenovna, N. (2018). The crimes that affect the perpetrator. In our opinion, to prevent the animal and plant world: the problems of commission of a crime, it is necessary to replace penalization. Amazonia Investiga, 7(16), the restriction of liberty for up to three years 380-390. Retrieved from with a punishment in the form of imprisonment https://amazoniainvestiga.info/index.php/amazo for a period of 1 year. Thus, the severity of nia/article/view/425 punishment in the future will ensure a smaller Clark, G. (2000). Porphyry: On Abstinence number of cases of cruelty to animals and make from Killing Animals. London: Bloomsbury it possible to bring the domestic criminal Academic. legislation in the field of animal protection as Demidova, V.V. (2018). Forensic characteristics close as possible to the European one. of animal cruelty: concept and essence. Scientific Bulletin of Dnepropetrovsk State Conclusions University of Internal Affairs, № 1, 169-173. Recovered from: Performed a retrospective analysis of criminal https://er.dduvs.in.ua/bitstream/123456789/2609 liability for cruelty to animals, we identified /1/34.pdf four historical stages in the formation and

www.amazoniainvestiga.info ISSN 2322 - 6307

Volume 10 - Issue 42 / June 2021 273

Dovnar, T. I. (1995). Criminal law of feudal Pathology. Veterinary Pathology, Vol. 53(5) Belarus (XV-XVI centuries): textbook. 910-918 DOI: 10.1177/030098 allowance. Minsk.: Acad. Ministry of Internal Osokin, R.B., & Chibizov, A.V. (2011). To The Affairs of the Republic of Belarus. Question About Animal Abuse. TSU Bulletin, Elmanovich, S. D. (2002). Law Manu. issue 9 (101), 361-365. Recovered from: Anthropology. Moscow: EKSMO-Press. https://cyberleninka.ru/article/n/k-voprosu-o- European Convention No. 123 On the protection predmete-zhestokogo-obrascheniya-s- of vertebrate animals used for research and zhivotnymi/viewer other scientific purposes. Official Gazette of Resolution of the Netishyn City Court of Council of Europe. Strasbourg, France, March Khmelnytsky Region. Case № 679/917/19, 18, 1986. 2019. Recovered from: European Convention No. 578-VII. On the http://reyestr.court.gov.ua/Review/82521964 protection of domestic animals. Official Gazette Sinclair, L, & Lockwood, R. (2005). Cruelty of Ukraine. Kyiv, Ukraine, October 08, 2014. toward cats. In: August JR, ed. Consultations in Francione, G. R. (1996). Without Thunder: The Feline Internal Medicine. 5th ed. Philadelphia: Ideology of the Animal Rights Movement. Elsevier; 1, 693–699 Recovered from: Philadelphia: Temple University Press. https://www.wellbeingintlstudiesrepository.org/ Glanville, C., Ford, J., & Coleman, G. (2019). cgi/viewcontent.cgi?article=1001&context=sota Animal Cruelty and Neglect: Prevalence and _2005 Community Actions in Victoria, Australia. Sinoverskaya, T. I. (2019). International Animals (Basel), 9(12). 10.3390/ani9121121 experience in the investigation of animal cruelty Law No. 1264-XII. Vidomosti of the Verkhovna and directions of its introduction into domestic Rada of Ukraine, Kyiv, Ukraine, October 08, practice. Scientific Bulletin of Public and 1991. Private Law, № 1, 222-228. Recovered from: Law No. 2001-05 Criminal Code of the http://www.nvppp.in.ua/vip/2019/1/tom_1/40.p Ukrainian Soviet Socialist Republic. Vidomosti df of the Verkhovna Rada of Ukrainian Soviet Skurativsky, V.T. (1995). Didukh: sacred to the Socialist Republic. Kyiv, Ukraine December 28, Ukrainian people. Kiev: Osvita. 1960. Turska, V. O. (2014). The problem of Law No. 2341-III Criminal Code of Ukraine. distinguishing between administrative and Vidomosti of the Verkhovna Rada of Ukraine, criminal liability for cruelty to animals. Kyiv, Ukraine, September 11, 2001. Scientific Bulletin of the International Law No. 3447-IV On protection of animals Humanities University. Jurisprudence Series, from cruel treatment. Vidomosti of the №8, 250-253. Recovered from: Verkhovna Rada of Ukraine, Kyiv, Ukraine, http://www.vestnik- February 21, 2006. pravo.mgu.od.ua/archive/juspradenc8/68.pdf Law No. 8073-X Code of Ukraine on Veresha, R. V. (2014a). Historical-legal and Administrative Offenses. Information of the comparative aspects of criminal liability for Verkhovna Rada of the Ukrainian. Kyiv, cruelty to animals. Journal of Civil and Criminal Ukraine, December 7, 1984. Procedure, № 4 (19), 113-121. Recovered from: Larkin, M. O., & Shepel, K. O. (2015). http://nbuv.gov.ua/UJRN/Chcks_2014_4_11. Criminological characteristics of animal cruelty. Veresha, R. V. (2014b). The critical aspect of Journal of the Academy of Advocacy of the relationship with the creatures (the legal Ukraine, №2 (27), 67-72. Recovered from: aspect). Bulletin of the Academy of Advocacy http://nbuv.gov.ua/UJRN/Chaau_2015_8_2_12. of Ukraine, Vol. 11. No. 1 (29), 53–61 Lobov, I. I. (2000). Criminal liability for cruelty World Declaration of Animal Rights (1978). to animals. Moscow: NORMAPRAVA. Recovered from: Lockwood, R., & Arkow, P. (2016). Animal https://constitutii.files.wordpress.com/2016/06/f Abuse and Interpersonal Violence: The Cruelty ile-id-607.pdf Connection and Its Implications for Veterinary Ziegler, G.E. (1995). The spiritual world of animals. Moscow: Land and Factory.

http:// www.amazoniainvestiga.info ISSN 2322- 6307